19730221 TZHC Mwanza 2

• -' 1 IN TUE HI H C OURT OF T1TZANIA \\' ATTJNZA - - .. . HIO-H COURT.. CRIIaN APP.No. L 88 OF 1972 Ori..ginal. Criminal Case No. 448 at1'71 of the..District 0 ourt of Iusa District at Nuson3a Befo±é-t.K. Limyolele, Esq.., D.I.L \71iBT.JTR.A I'rYAG-OHA . . . . . . . . . . . . . . . . . . . . . . -. . . . . . . . . . . . AP]?ELL..ITT versus REPtJ:I C .. . .. • •.•.. • ..... . . . , . • • • • • • • • • • •.. . . . . , . RES POITDELTT CHA.oE: Rape c/as 130 and 131 of the Penal Code. JIJDGEUENT MAKAME, 1.:. This, is an incredible s-tory of a woman, P.W.1 I:A TG-.ARA SHAG.flTA, who told the District Court. .Musoma that she was..raped several times by the appellant and another perscn but did practically...no -tbing until the following day vthen her husband., or rather her concubine 1 traced her to the. house of a couple.,.. and foid her in the ccmpany of the couple and one of the two alleged rairishers, the appellant,t s co-accused .. - The. complainant told the trial court that she was walldng...liome. with a Woman...friend, P.W. 6 ITGURIM WAGONYA, when the appellant a o-accu.ed tried to oatch.- hold Mngurime.. who however managed to.. escape. The .appellant and the other man -then dragged the c omplaina2lt to a hush and raped her.. several times, after which the appellant left, telling the other man..!'ecause I have a wife1 am.going, and you can go on having sex with the woman". i.cconding to .gurime, however, the first she heard was when they had ju±..walked the two accused and she heard the complainant, who was waJJdng behind her crying out "Wambna why. are. you holding me?".. It is difficult.. to believe that .fr the.. scene Mngurime went to the complainantt a concubine to make a report because, if she.d.id , then the mants explanation as to why-he did not go to-the- scene to rescue the complainant is too feeble to be ..oQavincing. He says he did not go because rain was gathering. but it is interesting to note that despite that he went. out and escorted Maguziine. Then he went baok home and happily retired to bed, The.. complainant testified that from the scene, of rape the . appellantt a co-aocused took her to-the house of Mongo whereall she did was to wLis to Nyanboge, Mongot a wife,.. -that she had been raped.. Then she sits there-by a firo with the f&ily and-her.ravisher until she..is discovered there by her concubine.. in the morning ... Even, wha her man comes round she does not relate the incident to him, not befare Mangot s wife spills the beans.At. the scone she raised no alaxn althoughthere were houses about two hundred yards away. ...I-t seems tome possible that there was some.. relationship pethaps npt - exaotly.platonic, between the.complainant and Werema, the appellantts oo- accu.sed,. and that.that is.. why, accarding to Mongo as soon as Kiicar'o the complain.antt a man, arrived, he asked ' t Wapi Werema?" only, and asked nothing about the appellant, although I<ikaro says Mngurime had told him about the 10 / r -2- appellant as well.Hewcnt straig1t to 11ongo 1 s hase, not to :he ... scene, where his happened" to be. Moo says he 1ew the cI2laint to be sna .e el&s wile and.yet he sAys he was not svxpr±sed. t sceher in the company a. WGreina, - a ,reput.04 vagabond and rough—neck, at 3 a.ril. According to the cell—lea&er, P.W.4 MAHU1DA MG-O, when.Jerema was asked he -.. said "But This was my woman"' This 7 and the foregoing, make cflle feel th&t .the appellant s version my *ii be true, without necaasa'ily afe&ing, or going into'. the mets and d6merit Js cEC the case as against The appellant a.ei'siOn is that he fourid Weretha and..±he..two women bit 'the wr. The the-wbre exôhahging abuse, toucbig bn-.pombe and and after try.ng to poily them he went his icy. This may well be 't::i.e. Méela 6áx1sd attorne for the Repub±b-.dtd not 'sh t4 support - oonV•iction, viôh I.alo find not to be so a I thre±'ore 42ow this apa eel. I quash 1e o.vict±oi and eet da. the I the appellt is r&ll in &Xatodr he shoul4 forthwith be released 1J.Qs5 fc stme ohez 1Nfu1 roaon he is stiU in prt,ec, ats of the 16diód ma4stratel s wcwlc show signs of u21c3.ue hnate, The names .. th.e accused are in plaft§ intetohaiiged and dates are gbt It is oommci- dblö to dispose of work epditiou1y but it is also tSZt to db it -well. Also the go.bd magistrate has The amuWxg habit of inting his ovdi vbóabu1ary apparently when he is at a loss-for a WOd. .1 doub vez'mch iixturat&' is a word in the English 1anuago and I an it is not a eubstitute fCW the word "Ejaculate"'. MWNzM .. 21st bvy, 1973. Deliered in OOtht at Mwa on the 21st dot cff Pebr, 19739 Apjeliit absent mrepresented. - Mr Meela, Senior State Attoztey for Republic.